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ISCR Case 05-11641.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date7/31/2007
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionSee the hearing decision (Case 05-11641.h1) →
Participants
Applicant Representation: Pro Se
Judge: Michael Y. Ra'anan, James E. Moody, William S. Fields
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline EPersonal Conduct · Against Applicant
- Guideline FFinancial Considerations · Against Applicant
- Guideline JCriminal Conduct · Against Applicant

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ISCR Case 05-11641.a1denied

Case Headnote

ISCR Case No. 05-11641.a1

Jul 31, 2007· Hon. Michael Y. Ra'anan· appeal

Summary

An applicant, representing himself, was denied a security clearance under Guidelines E (Personal Conduct), F (Financial Considerations), and J (Criminal Conduct) due to significant tax filing issues and criminal conduct. The applicant failed to file state and federal income taxes from the mid-1990s until 2004.

At the time of the hearing, the applicant still owed $23,000 in overdue taxes. His explanation for these filing failures was deemed insufficient, lacking professional diagnosis or treatment to support his claims. While some positive character references were submitted, they did not outweigh the concerns.

The appeal board affirmed the denial, concluding that the judge's findings were reasonable and supported by the evidence, and that no due process violations occurred.

Conditions Referenced

Disqualifying

AG ¶ 20raisedCriminal Conduct
AG ¶ 19raisedFinancial Considerations
AG ¶ 15raisedPersonal Conduct

Key Rule Quoted

“The record provides no basis to conclude that the Judge’s material findings are an unreasonable or implausible interpretation of the evidence.”

Procedural Posture

SOR issuedMay 19, 2006
Answer filed—
Hearing heldDec 29, 2006
Decision dateJul 31, 2007

Cite For

Affirmation of Denial Based on Significant Tax Issues Under Guideline F
Due Process Claims Must Be Substantiated with Evidence
Insufficient Personal Conduct Mitigation in the Face of Criminal Conduct

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved a denial of security clearance based on financial considerations, criminal conduct, and personal conduct. The applicant argued that the Judge's findings were unsupported by evidence and that he was denied due process. The Board affirmed the decision, finding no harmful error in the Judge's ruling.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowCarol G. Ricciardello — denied the clearance

Decided ona hearing

Guidelines belowGuideline FGuideline JGuideline E

What the Board reviewed

Judge mis-weighed or ignored evidence — raised by the applicantRejected
Applicant claimed the Judge made findings of fact that were not supported by record evidence.
Due-process / fairness — raised by the applicantRejected
Applicant contended he was denied due process of law.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse security clearance decision was arbitrary, capricious, and contrary to law.

Why the Board ruled this way

The Board found no harmful error in the Judge's findings and concluded that the evidence supported the decision to deny the security clearance. The due process claims were also found to be without merit, as the applicant had representation and ample opportunity to present his case.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decision

Appeal Board panel

Michael Y. Ra’anan — Chair
William S. Fields
James E. Moody

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline F; Guideline J; Guideline E DIGEST: The record provides no basis to conclude that the Judge’s material findings are an unreasonable or implausible interpretation of the evidence. A review of the record as a whole does not support Applicant’s claim that he was denied the due process rights secured under the Directive. Adverse decision affirmed. CASENO: 05-11641.a1 DATE: 07/31/2007 DATE: July 31, 2007 In Re: --------------- SSN: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 05-11641

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On May 19, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision–security concerns raised under Guideline F (Financial Considerations), Guideline J (Criminal Conduct), and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On December 29, 2006, after the hearing, Administrative Judge Carol G. Ricciardello denied Applicant’s request for a security clearance. Applicant filed a timely appeal pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issues on appeal: whether the Judge made findings of fact that were not supported by record evidence and whether Applicant was denied due process of law. We also construe Applicant’s appeal as contending that the Judge’s adverse security clearance decision was arbitrary, capricious, and contrary to law. Finding no error, we affirm. The Judge made the following findings of fact: Applicant failed to file both state and federal income taxes from the mid-1990suntil 2004. Applicant also had not filed state and federal taxes for several years during the 1980s. Further, she found: “Applicant’s explanation for his failure to file taxes was that he is a procrastinator and has a great deal of anxiety and avoidance issues regarding unpleasant tasks. He blames his upbringing and alcoholic parents for emotional issues he developed in avoiding things he does not like . . . He has attended Alcoholics Anonymous and ALANON to help him with his problems. He has diagnosed himself and believes he has avoidance issues that are related to his background and caused him not to file his taxes. He has not confirmed his diagnosis with a mental health professional. He has not sought any treatment, other than attending AA and ALANON, for his avoidance issues that he believes caused him to procrastinate [doing] things he does not like.” Decision at 4. “Applicant’s repeated failure to file his tax returns for two lengthy periods of time are criminal violations of federal law. He did not withhold enough money from his pay, and because his salary was increasing, so was his tax liability. He was aware that each of the tax years he failed to withhold enough money to cover his tax liability and failed to make any changes during this ten- year span.” Decision at 5. Applicant was aware of his obligation to pay his taxes and that failure to do so would result in penalties. At the close of the record Applicant still owed $23,000 in overdue taxes. He has entered into an installment agreement with the IRS to pay off the debt. Applicant’s supervisor considers him reliable and trustworthy and not a security risk. We have examined the Judge’s findings and conclude that they are supported by “such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion in light of all the contrary evidence in the record.” Directive ¶ E3.1.32.1. To the extent that Applicant has identified matters which he contends to be erroneous, some are harmless clerical errors, such as the Judge’s having improperly identified a Government Exhibit as having been prepared in 2006 rather than the correct year of 2005. Other matters appear to be Applicant’s disagreement with the weight the Judge attached to various pieces of evidence rather than challenges to fundamental accuracy. The record provides no basis to conclude that the Judge’s material findings are an unreasonable or implausible interpretation of the evidence. See ISCR Case No. 04-08806 at 2 (App. Bd. May 8, 2007). Tr. at 181. Concerning the due process challenge, we note that, at the hearing, Applicant was represented by counsel, who presented documentary evidence and witnesses on his behalf. Applicant has contended on appeal that the Judge “cut short” testimony which he believed relevant and necessary to his case. We have examined the 202-page transcript of the four-hour hearing, paying especial note to those portions which Applicant identifies as exhibiting this alleged tendency by the Judge. These instances appear to be reasonable efforts by the Judge to clarify the testimony of witnesses rather than to preclude a full and fair presentation of evidence. We note that Applicant’s attorney, at the end of the hearing, advised the Judge that “we don’t have anything further,” which buttresses our conclusion that Applicant had ample opportunity to present his side of the case. In light of the record as a whole, Applicant has not met his “heavy burden of persuasion” that he was denied the due process rights secured by the Directive. See ISCR Case No. 03-14052 at 3 (App. Bd. Sept. 28, 2005). Furthermore, the record does not support Applicant’s contention that the Judge’s adverse security clearance decision is arbitrary, capricious, or contrary to law. See ISCR Case No. 03-22861 at 2-3 (App. Bd. June 2, 2006).

ORDER

The Judge’s decision denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board